Albuquerque, NM – Last week, Attorney General Raúl Torrez joined a multistate coalition urging the Supreme Court to stay the decision issued by the U.S. Court of Appeals for the Fifth Circuit and a Texas district court that would restrict access to mifepristone, and as a result restrict access to medication abortion nationwide. While the Supreme Court has temporarily stayed the effects of the Fifth Circuit’s ruling for additional briefing, the coalition urges the Court to issue a stay for the remainder of the litigation, maintaining the status quo and allowing access to this safe and effective medication.
The amicus brief, filed in the United States Supreme Court, urges the Court to stay pending appeal the Court of Appeals’ ruling, which if allowed to take effect would halt the approval from the U.S. Food and Drug Administration (FDA) of a generic version for the medication abortion drug, mifepristone. Although the United States Supreme Court has stayed the Texas court’s ruling for a few days to allow for further briefing, a stay for the remainder of the litigation in the case is still pending before the Supreme Court. The ruling, if not stayed or reversed, would also ban access to mifepristone by mail, and would block the ability of non-doctors to prescribe and dispense the medication. Attorney General Torrez and the coalition of 23 other attorneys general warn that the Fifth Circuit’s order will drastically reduce access to safe abortion care and miscarriage management for millions of people across the country.
“We cannot play games with women’s reproductive rights in this country, especially for a drug that has been scientifically backed and deemed safe for more than 20 years,” said AG Torrez. “The conflicting rulings out of Texas and Washington have caused confusion across the country, with pharmacies, medical experts, and most concerningly, individuals trying to access this medication. Until there is clarification, the status quo should be maintained and access to this safe and effective medication should not be restricted.”
This decision from the U.S. Court of Appeals for the Fifth Circuit comes in response to motions filed by the FDA and Danco Laboratories LLC to stay the April 7, 2023, decision by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, which stayed the effective date of the FDA’s original approval of mifepristone in 2000.
The Fifth Circuit Court of Appeals reinstated the 2000 approval, but left in place the district court’s stay on other FDA regulatory actions regarding mifepristone, including the 2016 elimination of certain dispensing requirements, the 2019 approval of the generic drug, and the 2021 elimination of the in-person dispensing requirement. Attorney General Torrez and the coalition are urging the U.S. Supreme Court to stay this decision pending the appeal, given the critical role medication abortion plays in reproductive health care, and the need for ease-of-access, particularly in low-income, underserved, and rural communities.
The coalition notes that if the appellate court decision takes effect, it could drastically curtail abortion access for millions of Americans. According to current estimates, medication abortion accounts for over half, approximately 54 percent, of all abortions performed in the United States. Reducing medication options by forcing the FDA to stay approval of generic mifepristone, reducing which clinicians are permitted to provide prescriptions for this safe medication, and reinstating the in-person dispensing requirement will make it more challenging for millions of Americans to access safe medication abortions. This decision could result in substantially increased demand for procedural abortions, resulting in later and more risky procedures and more complicated and costly logistics for many patients, especially where procedural abortion is unavailable.
Joining Attorney General Torrez in filing today’s amicus brief are the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.
A copy of the brief is below.
